The US Field Manual (1956) reproduces Article 126 of the 1949 Geneva Convention III and Articles 142 and 143 of the 1949 Geneva Convention IV.

United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 207 and 349–350.

The US Operational Law Handbook (1993) provides that, subject to essential security needs and other reasonable requirements, the ICRC must be permitted to visit prisoners of war and provide them with certain types of relief.

United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Q-187.

The US Naval Handbook (1995) recognizes the special status of the ICRC and recalls its specific tasks: visiting and interviewing prisoners of war.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.2.

The US Naval Handbook (2007) states: “The [1949] Geneva Conventions recognize the special status of the ICRC and have assigned specific tasks for it to perform, including visiting and interviewing prisoners of war.”

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.2.

The US Manual on Detainee Operations (2008) states:

The ICRC and Nongovernmental Organizations and Other Similar Organizations.

(1) During the course of detention operations, it is likely that U.S. commanders will encounter representatives of organizations attempting to assert a role in protecting the interests of detainees. Such representatives will often seek access to detainees, and/or offer their services to assist in the care and maintenance of detainees. Effective detention operations planning will establish a mechanism for command interaction with such organizations in order to maximize the benefit of potential contributions to the U.S. effort. Commanders must anticipate that, upon initiation of detention operations, these organizations will request access to and/or information about detainees, and they will continue to do so throughout the operation. Commanders should seek guidance through operational command channels for responding to such requests prior to the initiation of detention operations, or as soon thereafter as possible. In the absence of mission-specific guidance, all such requests for access or information should flow via the established chain of command to the Office of the Secretary of Defense (OSD).

(2) Commanders must also be cognizant of the special status of the ICRC. Per DOD [Department of Defense] policy, the ICRC is the only organization presumptively authorized access to detainees. Consistent with the [1949] Geneva Conventions, it is DOD policy that the ICRC shall be allowed to offer its services during an armed conflict, however characterized, to which the United States is a party. ICRC access to detainees is subject to temporary suspension based on imperative considerations of military necessity. As a general rule, commanders should be in the grade of O-5 or above and should coordinate with a legal adviser before ordering a suspension of ICRC access to a detainee.

DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …

Article 3 Common to the Geneva Convention of 1949

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

…

… An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The DOD [Department of Defense] definition of the word “detainee” includes any person captured, detained, or otherwise under the control of DOD personnel (military, civilian, or contractor employee) … It does not include persons being held primarily for law enforcement purposes except where the United States is the occupying power …

…

a. Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” includes both “lawful enemy combatants” and “unlawful enemy combatants.”

…

b. Enemy Prisoner of War. Individual under the custody and/or control of the DOD according to Articles 4 and 5 of the … [1949 Geneva Convention III].

c. Retained Personnel … Personnel who fall into the following categories: official medical personnel of the armed forces exclusively engaged in the search for, or the collection, transport, or treatment of wounded or sick, or in the prevention of disease, and staff exclusively engaged in the administration of medical units and facilities; chaplains attached to enemy armed forces; staff of national Red Cross Societies and that of other volunteer aid societies duly recognized and authorized by their governments to assist medical service personnel of their own armed forces, provided they are exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease, and provided that the staff of such societies are subject to military laws and regulations.

d. Civilian Internee … A civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power.

United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-3–I-5; see also pp. viii and GL-3.

In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:

By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the [1949] Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:

Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.

(b) International Committee of the Red Cross Access to Detained Individuals. All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.

The US National Defense Authorization Act for Fiscal Year 2010 (2009) provides for the following authorization:

Sec. 1039. Notification and Access of International Committee of the Red Cross With Respect to Detainees at Theater Internment Facility at Bagram Air Base, Afghanistan.

(a) NOTIFICATION.—The head of a military service or department that has custody or effective control of the Theater Internment Facility at Bagram Air Base, Afghanistan, or of any individual detained at such facility, shall, upon the detention of any such individual at such facility, notify the International Committee of the Red Cross (referred to in this section as the “ICRC”) of such custody or effective control, as soon as practicable.

(b) ACCESS.—

(1) ICRC ACCESS.—The head of a military service or department with effective control of the Theater Internment Facility at Bagram Air Base, Afghanistan, shall—

(A) endeavor to ensure prompt ICRC access to any individual described in subsection (a) upon receipt by such head of an ICRC request to visit the detainee, pursuant to subsection (a); or

(B) if access to a such individual is temporarily denied as an exceptional measure, due to reasons of imperative military necessity, as soon thereafter as practicable, consistent with Article 126 of the Geneva Convention Relative to the Treatment of Prisoners of War, done at Geneva on August 12, 1949 … but normally no later than the next regularly scheduled ICRC visit.

(2) PROTOCOLS AND AGREEMENTS.—Such access to the individual shall continue pursuant to ICRC protocols and agreements reached between the ICRC and the head of a military service or department with effective control over the Theater Internment Facility at Bagram Air Base, Afghanistan.

(c) SCOPE OF ACCESS.—The ICRC shall be provided access, in accordance with this section, to those physical localities within the Theater Internment Facility at Bagram Air Base, Afghanistan, that are determined to be relevant to the treatment of an individual described in subsection (a), including the individual’s cell or room, interrogation facilities or rooms, hospital or related health care facilities or rooms, and recreation areas. The scope of access described in this subsection shall not be construed to apply to facilities other than the Theater Internment Facility at Bagram Air Base, Afghanistan.

(d) EXCEPTION CONSISTENT WITH THE GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR.—Consistent with Article 126 of the Geneva Convention Relative to the Treatment of Prisoners of War, access by the ICRC to a detainee as provided for in subsections (b) and (c) may be temporarily denied, as an exceptional measure, for reasons of imperative military necessity.

In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle … that the ICRC and the relevant Red Cross or Red Crescent organizations be granted all necessary facilities and access to enable them to carry out their humanitarian functions.”

United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 428.

In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated that it expected “the Government of Iraq … to provide the International Committee of the Red Cross with access to prisoners of war as will be done by the United States”.

United States, Department of State, Diplomatic Note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, Annex I, p. 2; see also Annex III, p. 4.

In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United States stated:

The coalition forces are granting ICRC timely access to all Iraqi prisoners of war. Iraqi authorities have continued to ignore the standards of the Geneva conventions in blatant disregard for international law. They have denied access to coalition prisoners of war by ICRC.

United States, Letter dated 8 February 1991 to the President of the UN Security Council, UN Doc. S/22216, 13 February 1991, p. 2; see also Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 22 January 1991.

In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees held at the US naval base in Guantánamo Bay, Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated that “[t]he detainees are not being held incommunicado. Representatives of the International Committee of the Red Cross (‘ICRC’) have visited detainees individually and privately”.

United States, State Department, Response to UNCHR Opinion No. 5/2003 of 8 May 2003 and the Communication of 8 January 2003 of the Working Group on Arbitrary Detention, August 2003.

On 25 August 2004, the report of an investigation into allegations that members of the 205th Military Intelligence Brigade had been involved in detainee abuse at the Abu Ghraib Detention Facility (an investigation ordered by the Commander, Combined Joint Task Force Seven (CJTF-7), and later supplemented with the appointment of an additional and more senior investigating officer by the Commander, US Army Materiel Command), was completed and forwarded to the ordering authorities. The report, authored by Lieutenant General Anthony R. Jones and Major General George R. Fay, found:

Explanation: Within this investigation’s timeframe, 16 September 2003 through 31 January 2004, the ICRC visited Abu Ghraib three times, notifying CJTF-7 twice of their visit results, describing serious violations of international Humanitarian Law and of the Geneva Conventions. In spite of the ICRC’s role as independent observers, there seemed to be a consensus among personnel at Abu Ghraib that the allegations were not true. Neither the leadership, nor CJTF-7 made any attempt to verify the allegations.

Recommendation: DoD [Department of Defense] should review current policy concerning ICRC visits and establish procedures whereby findings and recommendations made by the ICRC are investigated. Investigation should not be done by the units responsible for the facility in question. Specific procedures and responsibilities should be developed for ICRC visits, reports, and responses. There also needs to be specific inquiries made into ICRC allegations of abuse or maltreatment by an independent entity to ensure that an unbiased review has occurred.

United States, Department of Defense, AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade (The Fay Report), 25 August 2004.

In March 2006, the US Government issued a written response to a report produced by a group of five special rapporteurs to the United Nations Commission on Human Rights, dated 16 February 2006, which was critical of US policy regarding detainees held at the US naval base at Guantánamo Bay, Cuba. The US Government’s response stated in part:

The law of armed conflict governs the conduct of armed conflict and related detention operations, and permits lawful and unlawful enemy combatants to be detained until the end of active hostilities without charges, trial, or access to counsel.

• Combatants may be detained to prevent them from taking up arms against the United States.

• This is the principal reason for Guantánamo detention, an important point which the Report questions and disregards.

• It is also the reason why the United States has given the International Committee of the Red Cross, rather than human rights rapporteurs, unimpeded access to the detainees at Guantánamo.

United States, Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantánamo Bay, Cuba, 10 March 2006, p. 11.

In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:

Most of the enemy combatants we capture are held in Afghanistan or in Iraq, where they’re questioned by our military personnel. Many are released after questioning, or turned over to local authorities – if we determine that they do not pose a continuing threat and no longer have significant intelligence value. Others remain in American custody near the battlefield, to ensure that they don’t return to the fight.

In some cases, we determine that individuals we have captured pose a significant threat, or may have intelligence that we and our allies need to have to prevent new attacks. Many are al Qaeda operatives or Taliban fighters trying to conceal their identities, and they withhold information that could save American lives. In these cases, it has been necessary to move these individuals to an environment where they can be held secretly [sic], questioned by experts, and – when appropriate – prosecuted for terrorist acts.

…

[I]n addition to the terrorists held at Guantánamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency. This group includes individuals believed to be the key architects of the September the 11th attacks, and attacks on the USS Cole, an operative involved in the bombings of our embassies in Kenya and Tanzania, and individuals involved in other attacks that have taken the lives of innocent civilians across the world. These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks. The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.

Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged. Doing so would provide our enemies with information they could use to take retribution against our allies and harm our country. I can say that questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world. Today, I’m going to share with you some of the examples provided by our intelligence community of how this program has saved lives; why it remains vital to the security of the United States, and our friends and allies; and why it deserves the support of the United States Congress and the American people.

…

This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws. This program has received strict oversight by the CIA’s Inspector General.

…

I’m announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantánamo Bay. (Applause.) They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Applause.)

We’ll also seek to prosecute those believed to be responsible for the attack on the USS Cole, and an operative believed to be involved in the bombings of the American embassies in Kenya and Tanzania. With these prosecutions, we will send a clear message to those who kill Americans: No longer – how long it takes, we will find you and we will bring you to justice. (Applause.)

These men will be held in a high-security facility at Guantánamo. The International Committee of the Red Cross is being advised of their detention, and will have the opportunity to meet with them. Those charged with crimes will be given access to attorneys who will help them prepare their defense – and they will be presumed innocent. While at Guantánamo, they will have access to the same food, clothing, medical care, and opportunities for worship as other detainees. They will be questioned subject to the new U.S. Army Field Manual, which the Department of Defense is issuing today. And they will continue to be treated with the humanity that they denied others.

…

I know Americans have heard conflicting information about Guantánamo. Let me give you some facts. Of the thousands of terrorists captured across the world, only about 770 have ever been sent to Guantánamo. Of these, about 315 have been returned to other countries so far – and about 455 remain in our custody. They are provided the same quality of medical care as the American service members who guard them. The International Committee of the Red Cross has the opportunity to meet privately with all who are held there. The facility has been visited by government officials from more than 30 countries, and delegations from international organizations, as well. After the Organization for Security and Cooperation in Europe came to visit, one of its delegation members called Guantánamo “a model prison” where people are treated better than in prisons in his own country.

United States, President George W. Bush, White House speech, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006.

In 2007, in its comments on the Human Rights Committee’s concluding observations on its second and third periodic reports, the United States stated in response to a recommendation concerning ICRC access to detainees:

The United States is engaged in an armed conflict with al Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Covenant, is the applicable legal framework governing these detentions.

In certain rare cases, the United States moves enemy combatants to secret locations. As the President of the United States stated in a September 6, 2006 speech, “Questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world.” Under the law of war there is no legal obligation for the United States to provide ICRC notice and access to these enemy combatants who are held during the ongoing armed conflict with al Qaida, the Taliban, and their supporters.

All of the detainees who were in this secret interrogation program as of September 6, 2006, were moved to the Department of Defense detention facility at Guantánamo Bay. The ICRC has been notified and has access to these detainees, as they have to all detainees at Guantánamo.

United States, Comments by the Government of the United States of America on the concluding observations of the Human Rights Committee, 12 February 2008, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, submitted 1 November 2007, p. 3.

[footnote in original omitted]

In 2009, in further comments on the Human Rights Committee’s concluding observations on its second and third periodic reports, the United States stated:

[O]n January 22, 2009, President Obama signed three executive orders relating to U.S. detention and interrogation policies broadly and the Guantánamo Bay detention facility specifically. … [One of these orders,] Executive Order 13491 (“Ensuring Lawful Interrogations”) … requires that “all departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.”

United States, Further comments by the Government of the United States of America on the concluding observations of the Human Rights Committee, 24 September 2009, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.2, submitted 24 July 2009.

In November 2010, in responding to the recommendations made by the Working Group of the UN Human Rights Council’s Universal Periodic Review of US human rights records, the US Department of State’s Legal Adviser stated:

Most of these recommendations referred to our country’s continuing armed conflicts in Afghanistan, Iraq, and against Al Qaeda and associated forces. … The International Committee of the Red Cross has access to Guantánamo.

United States, Statement by the Legal Adviser, US Department of State, before the UN Human Rights Council, Geneva, 9 November 2010, p. 2.